30 June 2022

2022 - An Afrikaans Test used to Weed Out Identity Fraud?

Submitted by SchoemanLaw Inc

by Nicolene Schoeman-Louw

Context

South Africans have condemned Irish airline Ryanair for making them take a test in the Afrikaans language on UK flights, calling it discriminatory. Ryanair defended the test, saying it weeds out those travelling on fraudulent South African. Some reports say it applies to all Ryanair's European flights, while others say it applies to those on UK and Ireland routes. In a statement to South Africa's Daily Maverick paper, Irish border authorities denied they require such tests. 

Official languages

South Africa is a multilingual country, and Section 6 of the Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996) grants official language status to 11 languages, namely Sepedi, Sesotho, Setswana, siSwati, Tshivenda, Xitsonga, Afrikaans, English, isiNdebele, isiXhosa and isiZulu. In addition, President Cyril Ramaphosa’s cabinet approved the Constitutional Eighteenth Amendment Bill for public comment a few days ago, which will recognise South African Sign Language as the twelfth official language of the country.

Afrikaans is not the only official language in a diverse country such as South Africa. Also, according to 2018 statistics, only around 12% of South Africans speak Afrikaans at home  (https://www.statista.com/statistics/1114302/distribution-of-languages-spoken-inside-and-outside-of-households-in-south-africa/). Thus, any such a test is fundamentally misguided, and there is an apparent disconnect between the purported outcome and the means to achieving same.

Discrimination

In South Africa, discrimination is prohibited by the Constitution in terms of section 9 of the Bill of Rights and by the Prevention of Unfair Discrimination Act 4 of 2000, as amended (the “Act”).

In terms of the Act: “discrimination means the behaviour or practice of forming of opinions about others not based on their individual merits, but rather their membership in a group with assumed characteristics."

Most importantly, the discrimination includes:

the actions; orthe inaction of such entities or associations:-and consists of those of its-members,elected directors or representatives,committees or managers,chairpersons,treasurers,caterers,staff and the like when exercising:any right,entitlement,function,or power in terms of their office or membership.

The Act prohibits unfair discrimination in South Africa by the government and by private organisations and individuals. If these tests are being conducted on South African soil, the airline would be in hot water.  

Data Privacy

In South Africa, the right to privacy and dignity is protected in terms of the common law and section 14 of the Constitution. In addition, data privacy is regulated by the Protection of Personal Information Act 4 of 2013 (“POPIA”), personal information is defined as including:

"…means information relating to an identifiable, living, natural person, and where it is applicable, and identifiable, existing juristic person, including, but not limited to—

information relating to the race, gender, sex, pregnancy, marital status, national, ethnic or social origin, colour, sexual orientation, age, physical or mental health, well-being, disability, religion, conscience, belief, culture, language and birth of the person;

……..;”

POPIA regulates the processing of private information:

“any operation or activity or any set of operations, whether or not by automatic means, concerning personal information, including—

(a) The collection, receipt, recording, organisation, collation, storage, updating or

modification, retrieval, alteration, consultation or use;

(b) Dissemination by means of transmission, distribution or making available in

any other form; or

(c) Merging, linking, as well as blocking, degradation, erasure or destruction of

Information.”

Therefore, the question is whether Ryanair had informed consent of the passengers it tested, regardless of the logical disconnect and on who’s soil it occurred. POPIA is the little sister of the GDPR, which applies on European soil and sets a similar and, in many instances, higher standard than POPIA does.

The fairness of the decision and administrative process

As a concluding remark, in South Africa, the Promotion of Administrative Justice Act 3 of 2000 (“PAJA”) gives effect to the right to administrative action that is lawful, reasonable and procedurally fair and to the right to written reasons for administrative action as contemplated in section 33 of the Constitution.

An administrative act means any decision is taken or failure to take a

decision. It extends to both the state and private organisations. It is a mechanism that holds decision-makers to account and allows for a process to establish whether the decision taken aligns with the purported outcome seeking to be achieved and whether it is substantially and procedurally fair.

The airline would struggle to justify a decision that is flawed even on an elementary statistical analysis. A better mechanism to verify identity would potentially be to look at ways to verify between official sources or through the relevant border control process and not through flawed, arbitrary self-assessment.

Nicolene Schoeman-Louw

SchoemanLaw Inc, Cape Town
www.schoemanlaw.co.za

SchoemanLaw Inc

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